TaxTMI 
TaxTMI 
2016 (11) TMI 1339
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....on order. 3. In respect of the appellant M/s International Shippers and Traders, the Ld Counsel Hari Radhakrishnan submitted that the law relating to mandatory pre-deposit of 7.5% of the penalty imposed is not applicable to the present case as appellant's right of appeal has got crystallized when the lis arose. Therefore, the provisions of the un-amended Section 129E of the Customs Act, 1962 will apply. The appellant is taking this stand by placing reliance on the decision of the Hon'ble High Court of Kerala in the case of Muthoot Finance Ltd Vs UOI reported in 2015(38) STR -1133(Ker), Super Threading (India) Pvt.Ltd. Vs UOI reported in 2015(323)ELT 119(P&H) and K.Rama Mohana Rao & Co. Vs UOI as reported in 2015(321) ELT 195(AP). 4. In respect of the appellant, M/s Vantech Trading, the Ld. Counsel Sri. K. Sarveswara Rao submitted as under: 4.1 The appeal is related to the period, from April 2011 to March 2012, against the order of the Commissioner (Appeals) dated 30-11-2015 which was passed in the first appeal against the Order-in-Original dated 19-07-2013. So, apparently the litigation commenced much prior to the amendment, hence the amended law is not applicable to the instant....
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.... made in these matters. 8. In the first place, the, Single Bench judgment of the Hon'ble High Court of Kerala in the Muthoot Finance Ltd case 2015(38) STR 1133 (ker) stands modified by the Division Bench of the same Court in 2016(42) STR 811(ker). Secondly, the judgment of the High Court of A.P. and Telangana in the case of K. Rama Mohana Rao & Co. V UOI 2015(321) ELT (195) is only an interim and a specific order allowing the petitioner to approach the appellate authority for waiver of pre-deposit. Be that as it may be, these decisions have been distinguished by several other High Court judgments. For example; the Hon'ble Allahabad High Court in the case of Ganesh Yadav Vs UOI 2015 has inter alia observed as follows: "Parliament while substituting the provisions of Section 35F of the Central Excise Act, 1944 by Finance Act (No. 2) of 2014, has laid down that the Tribunal or the Commissioner (Appeals) ""shall not entertain any appeal" unless the appellant has deposited the duty or, as the case may be, a penalty to the stipulated extent. These words in Section 35F of the Act would indicate that on and after the enforcement of the provision of Section 35F of the Act, as amended, an ....
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.... For these reasons, we hold that the petitioner would not be justified in urging that the amended provisions of Section 35F (1) of the Act would not apply merely on the ground that the notice to show cause was issued prior to the enforcement of Finance (No.2) Act, 2014. We find no merit in the constitutional challenge. The petition shall accordingly stand dismissed for the aforesaid reasons." Further, the Hon'ble High of Court of Madras, in the case of Dream Castle Vs UOI 2016(43) STR 25 (MAD) inter alia held as follows: "The third contention of the learned Senior Counsel for the writ petitioner is that the High Courts of Andhra Pradesh and Telangana and Kerala have taken a view that the amendment is prospective in nature and that it would apply only to proceedings originally initiated on or after 6-8-2014. The decision of the High Court of Andhra Pradesh relied upon by the learned Senior Counsel in K.Rama Mohanarao is only a prima facie view. We have already analyzed this decision while dealing with the first contention. Similarly, the decision of the Kerala High Court in Muthoot Finance Limited has also been analysed in great detail by us. With great respect to these Courts, ....
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....se proceedings initiated on or after 6-8-2014 is liable to be dismissed. Accordingly it is dismissed. There will be no order as to costs. In so far as the writ appeal is concerned, the Order-in-Original was passed on 27-2-2015 and the assessee challenged it before this Court without exhausting the alternative remedy of appeal. But in the course of the hearing of the writ petition, the assessee seems to have agreed to go before the Appellate Authority and sought a clarification that the amendment would not apply to his case. The learned Judge agreed with the said contention and allowed the assessee to file an appeal along with an application for waiver without making a pre-deposit of 7.5% as per the amendment. The interpretation given by the learned Judge to the amendment is not correct. Hence, the appeal of the Commissioner of Service Tax is liable to be allowed. Accordingly, W.A. No. 1424 of 2015 is allowed, the order of the learned Judge is set aside. It is open to the respondent to canvass the appeal on all grounds except the effect of the amendment. There will be no order as to costs. 9. The Hon'ble High Court of Delhi in the case of Anjani Techno Plast Ltd V Commissioner Cus....
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....tion of the SCN. There can be no parallel therefore with the institution of a suit. Thirdly, the clear language of the second proviso to amended Section 35F of the CE Act, the validity of which was not in challenge before either the Kerala High Court or the High Court of Telangana and Andhra Pradesh High Court in K. Rama Mohanarao V/s. Union of India (supra) does not permit such an interpretation. The Court is therefore unable to concur with the view of the learned Single Judge of the Kerala High Court in Muthoot Finance Limited V/s. Union of India (supra) or of the High Court of Telangana and Andhra Pradesh in K. Rama Mohanarao V/s. Union of India (supra). The decision of the learned Single Judge of the Madras High Court in Fifth Avenue Sourcing (P) Ltd. V/s. Commissioner of Service Tax (supra) also proceeds on the basis that the date of issuance of an SCN by itself creates a vested right in the notice as regards the appeal that may be filed against the adjudication order pursuant to such SCN. As already observed, it is possible that pursuant to an SCN, the adjudication proceedings may be dropped if the adjudication authority comes to the conclusion that no demand requires to be....